Ever since the SOPA/PIPA blackout last month — which I am pleased to report performed precisely as designed; score one for democracy! — I’ve been consumed with curiosity about the precedent for both this type of lawmaking and this type of protest.

It’s a bit of a cliché at this point to point out that the Walt Disney Company essentially owns American copyright law; whenever Mickey Mouse (created in 1928) threatens to move, over time, into the public domain, Disney has lobbied Congress to extend the legal span of copyright. So within progressive circles, copyright has been often been regarded as a weapon that corporations wield against culture. For example, although SOPA and PIPA are dead for now, a proposed international copyright treaty — ACTA, the Anti-Counterfeiting Trade Agreement — has already been signed by the United States and is currently making the rounds in Europe. Negotiated completely in secret in closed sessions between lawmakers and media corporations, it is considered by some to be even more dangerous to a free and open Internet than SOPA/PIPA.

So in researching historical precedents, I was intrigued to read the following, in an 1877 collection of essays by Nathaniel Southgate Shaler:

In the last days of this late distracted session of Congress a stealthy effort was made to push through the legislative ways a bill that would have practically abolished the limited monopoly of inventions granted by our present patent laws. This measure passed unquestioned through the House, and was only arrested in the Senate by the vigorous resistance of a few men from without its walls. As this scheme has the backing of several strong corporations…it is sure to be revived in the next session of the national legislature.

The dangerous, secretive bill of his time was one that apparently would have abolished restrictions on intellectual property!

I’m not certain what bill in particular Mr. Shaler is referencing here, since the latter half of the nineteenth century was absolutely littered with patent, trademark, and copyright legislation. Patent law was created to preserve the rights of an inventor to the profits derived from his invention, without fear of the invention being duplicated by a rival; trademark law, the same for brand names (essentially to prevent counterfeit goods from being sold under a reputable name); and copyright law, the same for works of creative expression such as books, plays, and music. The three forms of intellectual property are nowadays often bundled together as far as legal rights are concerned, but it wasn’t always so.

The patent law in effect as of 1870 provided patent protection to an inventor for seventeen years from the date of filing. Earlier, the grant of patent was for only fourteen years, but the holder of a pre-1861 patent could personally petition Congress for an additional seven-year extension, in what was surely the least efficient process imaginable. Occasionally there came to Congress a petition for a further extension based on extenuating circumstances — here’s a Congressional transcript from 1873 in which Lyman Trumbull, in his last year of office after 28 years in the Senate, wearily objects to this practice: “Every man who has a patent will come here with his claim to have it extended. He will bring his affidavits that he has not made as much as he thinks he ought to have made by his discovery; somebody has litigated with him perhaps, or there has been some objection… It is time it was stopped.” (Patents nowadays generally last for 20 years.)

Despite Mr. Shaler’s claims, patents and intellectual property in general were treated very seriously by lawmakers at the time. In the 1870s there was a furious debate about whether Congress had the constitutional power to administer trademarks at the federal level (since only patents and copyright are mentioned in the Constitution), and when the Supreme Court decided in 1879 that it was in fact not constitutional, a constitutional amendment to give Congress that power was immediately proposed by junior Iowa Senator Moses A. McCoid.

In debate, Georgia’s Nathaniel Hammond declared the amendment frivolous by asserting that the stability of the Constitution, and its assignation of such rights to the individual states, was “like the sun, grand, majestic, glorious — but out of its orbit, whether by force, legislative or judicial, centripetal or centrifugal, it makes of our system chaos and blazes but to burn.” [Citation]

McCoid responded, in part (emphasis mine):

The lion’s skin may become too short. We are stretching our limbs; we are expanding our lungs; we are extending our territory, increasing the number of our States, extending new lines of railway, stretching telegraph wires across plains and mountains; we are swarming above and talking beneath the seas; we are overcoming new difficulties and contriving new forces and instruments of enterprise, and the giant form which is thus growing to manhood can not lie within the narrow confines of the cradle of its infancy. […]

The Constitution, Mr. Speaker, is not a mummy of unchangeableness laid away in the pyramid of our reverence for our fathers, but the plastic charter for a living, growing, ever-changing people… [Citation]

Spoiler alert: the Constitutional amendment never went anywhere. Congress did pass a federal trademark law in 1881 based on a creative interpretation of its power to regulate interstate commerce, but modern trademark law as we understand it today wasn’t codified until the Lanham Act of 1946.

But until the 1881 act, there was an interim during which there was no system of federal trademark regulation. The law as laid out in 1870 was declared unconstitutional and repealed in 1879 — which meant that the government had to return $210,000 in trademark fees collected during those nine years. They had to pay back $25 per filing to 8,400 people. And until the issue could be settled further, trademark law remained an issue regulated by individual states — meaning that you could potentially file a trademark in California that wasn’t valid in Oregon.

Two more minor points of interest in this debate. One of Senator Hammond’s reasons for opposing the constitutional amendment was that he did not believe trademarks were as worthy of protection as copyrights and patents:

Suffer me to call attention to this effort to give a dignity and importance to trade-marks to which they are not entitled… The author spends a lifetime of seclusion and study that he may write a book. He is frequently not rich, but poor; not honored, but despised. A copyright but protects from piracy that which, while it may support him, blesses his race. The scientist or inventor constructs in his brain what no other mind can produce. To perfect his projects costs time and toil. To-day he is buoyant with hope, to-morrow in despair. Capital opposes his innovations; ignorance fights him. He may be driven from home, as was Fourdrinier from France, for inventing the paper-making machine, or Jacquard from Lyons, for improving weaving machinery. It is right that genius should be protected and rewarded. And yet so opposed were our fathers to monopoly that to these benefactors of mankind they gave constitutional protection only for “a limited time,” in consideration of public use of their inventions, etc., in all future time.

But what thought or study, what toil or risk, what care or expense to the capitalist was involved in such trade-marks as “the shirt,” “exactly twelve yards,” “Bismarck” (collars), “genuine Yankee soap,” or “Mrs. Winslow’s soothing syrup”? Why should they be protected and forever? [Citation]

To which McCoid responded, with an amusing bit of theatrics:

The gentleman from Georgia seems to think the subject a trivial one, and not of sufficient importance to justify this action; and in his attempt to belittle it he talks of the protection of “Winslow’s Soothing Syrup” and such things as that. I wish to remind the gentleman, in order to relieve his mind from that attempt to belittle the subject, that he justifies and eulogizes our fathers for placing the copyright clause in our Constitution; but he might, with a like spirit of unfairness, as well have ridiculed them by referring to these copyrighted works I have before me [holding them up] — the “Dashington Brothers’ Negro Song-Book,” the “Pitcher-of-Beer Songster,” the “Sullivan and Harrington Sweet Jerusha Jane Songster,” “Lottie Grant’s Tired of Single Life Songster,” “Mother Goose,” “Weston Brothers’ Laughing Chorus,” and “Jenny Jones’s Songster.”

A Member: Do not forget “Jack, the Giant-Killer.”

Mr. McCoid: I will include “Jack, the Giant-Killer,” as the gentleman suggests, and I might mention many others. [Citation]

Hammond also opposed a bill that detailed harsh penalties for counterfeiters and violators of trademark:

Those sections punish every person who deals in or sells or keeps or offers for sale or procures the sale of goods covered by a colorable imitation of a trade-mark, or puts a trade-mark on goods made to imitate trade-mark goods, or fills a bottle or box covered by a trade-mark with an imitation of its intended contents, etc… The punishment is a fine not exceeding $1,000 or imprisonment not more than two years, or both such fine and imprisonment. […] Have the gentlemen thought of the severity of this punishment? […]

Four men, convicted of illicit distillation, left the bar of a United States court for the penitentiary in Albany simultaneously. One was rescued by a pardon; death relieved the keeper of the custody of the other three…

I am told the laws would not be enforced, but are needed to prevent the crimes. The advocates of the bill would invoke the majesty of the United States to frighten citizens. No such spirit breathes from the Constitution. If you would not have laws despised, pass none which you will not enforce. Make laws to provoke love, not to excite terror. [Citation]

This strikes me as similar to contemporary debates about the penalties for intellectual property “piracy.” According to the official RIAA website:

Making unauthorized copies of copyrighted music recordings is against the law and may subject you to civil and criminal liability. A civil law suit could hold you responsible for thousands of dollars in damages. Criminal charges may leave you with a felony record, accompanied by up to five years of jail time and fines up to $250,000.

Meaning, as has been pointed out by many people, you could go to jail for five years for pirating a Michael Jackson song, or one year longer than the doctor who killed him.

This entry was posted on Monday, February 6th, 2012 at 11:45 pm and is filed under Blog.
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